Another winning alimony appeal

Because somebody apparently wanted me to feel old, this appeal came out of a divorce that we negotiated in December 2012. My client had been paying alimony well past his Social Security retirement age, and after he reached his maximum benefit at age 70 he stopped paying alimony to his ex, as chapter 208, section 49(f) said he could. The second attorney his ex-wife consulted filed a contempt complaint against him, and the court inexplicably found him in contempt. As a result of the appeal, the contempt judgment was vacated, and my client became entitled to recover about $100,000 in overpaid alimony and attorney fees.


A WIN on appeal

It’s one thing to receive a judgment that you simply don’t like. More often than not, when I disagree with the court’s decision, I can understand the judge’s reasoning. If the judge did her job correctly, there usually is no reason to escalate to the appeals court. But sometimes the judge simply made a mistake, or “abused discretion.” An abuse of discretion can be found most commonly where the law prescribes certain things that the court must do in order to rule a certain way. In this case, both the statute (the Alimony Reform Act of 2011) and the case law (thus far, limited to George v. George, 476 Mass. 65 (2016) both stated fairly precisely the statutory factors which the judge needed to apply, and the legal standard (“in the interests of justice”) that the judge’s finding’s needed to satisfy.

Here, the question at trial was whether my client’s alimony obligation should terminate after a certain period of time, or if it was “in the interests of justice” that he keep paying. We also had a secondary question whether his income even left him able to pay alimony, considering that he had suffered a loss of income and also had no help paying the parties’ daughter’s college tuition. The judge seems to have tried to get around the question of his ability to pay by saying that neither parent had to support their 19 year-old daughter (yes, I thought this was horrifying), but she also failed to follow the statutory scheme or even to refer to the statute in her findings.

Yes, it’s great that the appeals court threw out the judgment, but in the interim my client has had to liquidate assets to pay nearly $20,000 in alimony, and, let’s face it, appeals aren’t cheap. But a win is a win.

Hanley v. Hanley, 2018-P-0011

Hanley v. Hanley, Appeal No. 2018-P-0011

We argued this case before the Appeals Court last Wednesday. At issue was the question whether the Worcester Probate and Family Court properly applied the statutory standard when it ordered that the plaintiff’s alimony obligation continue beyond the statutory term limit.

While it is true that a court has the discretion to extend alimony beyond its prescribed term, it needs to make a finding that the extension is “in the interests of justice.” In order to make that finding, the court needs to address a series of factors set out in the statute, as more fully discussed in the 2016 case of George v. George. The judge in this case did not address itself to those statutory factors, nor did it find that the facts satisfied the “interests of justice” standard.

While the particular “interests of justice” finding might sound like it requires the court to say some magic words (honestly, it does to me too), this case is a reminder that a trial judgment must follow specific rules set out in the law. Whether the court’s findings are implicit in the judgment or spelled out in separate findings of fact and conclusions of law, the rulings contained in the judgment must flow rationally from the judge’s findings. Where the judgment and the facts simply fail to sync, it is possible that the court has abused its discretion, or that the judgment is simply the product of an error.

This is one of the reasons we have an appeals court. Judges are people, and people make mistakes. Sometimes we’re able to correct those mistakes.


Taking it to the highest court in the Commonwealth

We’re going to the Supreme Judicial Court! The mission is to refine the statutory meaning of “economic marital partnership” in the context of calculating the duration of alimony, where the divorcing parties cohabited prior to the marriage.

Under the Alimony Reform Act, the duration of alimony payments is determined based on the length of the marriage. Where the parties lived together prior to marrying, however, the court can add to the length of the marriage all or a part of the period of premarital cohabitation, where the court finds that the cohabiting parties engaged in an “economic marital partnership.”

The statute does not say what an economic marital partnership is, and some drafters of the legislation say that the provision was intended to benefit same-sex couples who might have lived together as spouses in all but name for a long time before they were able to marry formally. The SJC first looked at the question two years ago in Duff-Kareores v. Kareores, 474 Mass. 528 (2016), but some questions remain unanswered.

Stay tuned to Connor v. Benedict, SJC-12551.

This is why we don’t give up in custody battles.

When the court fails to cooperate (or even do the right thing), quitting still is not an option. This one was brutal. The court had refused to allow the report of a guardian ad litem into evidence, gave custody to the father (the GAL had recommended that custody stay with mom), and then the dad decided to terminate contact between mom and her daughter. Multiple complaints for contempt did not resolve the problem, and we eventually had to force the judge off the case. Persistence won out.

Gardner mother’s nightmare of losing custody of her daughter recounted – News – – Worcester, MA

Ratings and Reviews

10.0Robert G. Clark
Robert Gilkes ClarkReviewsout of 3 reviews